It’s not every day that a former governor comes before the Supreme Judicial Court, but that’s what happened this week in a case involving Deval Patrick.
The Democrat, who left office in 2015, is accused by a former state employee of defamation and is fighting the charge.
The unique case raised an equally unique question: Is it wrong for justices who were appointed to the court by Patrick to hear his case?
No, said two legal experts. While there are extensive rules governing when justices can and should recuse themselves, this isn’t one of them.
Patrick appointed four of the seven SJC justices, including Chief Justice Ralph Gants in 2014. He appointed Margot Botsford in 2007, Barbara A. Lenk in 2011, and Geraldine S. Hines in 2014.
For one thing, said Renee Landers, a Suffolk University law professor and a member of the SJC’s Committee on Judicial Ethics, such a requirement would make it nearly impossible to hear any number of cases, because many involve the state or high-ranking state officials in some way.
“It would take something more, like some kind of personal relationship or prior professional relationship,” Landers said.
Nancy Gertner, a Harvard Law professor and former judge for the US District Court of Massachusetts, agreed, saying the judge would have to have been somehow involved in the case before he or she was on the bench.
Gertner said that once a justice is appointed, he or she is expected to be impartial.
“Who appointed you at least in theory is not supposed to determine what you do on the bench. That’s what judicial independence is about,” Gertner said.
According to the rules of the SJC, a judge is required to disqualify him- or herself in situations where he or she might have a bias toward a party or a party’s lawyer, or personal knowledge of the facts in dispute.
Also, if a judge or his or her domestic partner, family member or anyone else residing in the judge’s household has an economic interest in the subject in controversy, they are required to step down.
As it turns out, one justice did recuse herself from Patrick’s case. Justice Kimberly S. Budd’s chair was empty during Monday’s oral arguments. Budd was appointed last August by current Governor Charlie Baker.
A court spokeswoman confirmed that Budd recused herself, but would not say why.
Parties in a case are also allowed to file a motion seeking to recuse a justice, the court spokeswoman said. No such motions were filed in this case.
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